2003 murder case hinges on DNA evidence

A judge heard evidence in a 2003 murder case Tuesday and will now make a ruling on whether DNA evidence can be used during the course of a trial or if law enforcement officers violated the defendant's rights.

A judge heard evidence in a 2003 murder case Tuesday and will now make a ruling on whether DNA evidence can be used during the course of a trial or if law enforcement officers violated the defendant's rights.

According to police, family members found 76-year-old Margaret Tessneer dead at her Railroad Avenue home in Shelby in September 2003.

The phone lines had been damaged and Tessneer’s family had to rush to a neighbor's house to call 911, police previously told The Star.

Donald Eugene Borders was arrested in December 2009 on charges of raping and murdering Tessneer. He has since been in the Cleveland County Detention Center with a $300,000 bond.

A prosecutor with the District Attorney's Office previously told The Star the case relies heavily on DNA.

David Teddy, Borders’s defense attorney, filed a motion to suppress evidence on behalf of his client.

If Judge Richard D. Boner decides Borders’s rights were violated in the investigation of Tessneer’s murder, he could rule to suppress key pieces of evidence in the case.

DNA collection

John Kaiser, a State Bureau of Investigation agent, testified Tuesday that three times in May of 2009 he asked Borders for a DNA sample.

Kaiser said he was denied all three times.

"He refused consent," Kaiser testified. "He told us he wanted to talk to an attorney and had not done so yet."

The SBI agent testified that at that time, he felt he did not have probable cause to obtain an affidavit for a search warrant.

In the early morning hours of Saturday, May 16, 2009, a Gaston County police officer knocked at the door of 336 Doc Wehunt Road in Cherryville.

According to court testimony, Officer James Brienza spoke briefly with Borders's mother and told her he had a warrant for her son's arrest.

Brienza explained to Borders that he was there to serve a warrant taken out two years prior by Borders's former wife for assault on a female.

The officer testified Tuesday that he wasn't just there to arrest Borders, but as pre-planned, to also surreptitiously obtain a DNA sample.

Brienza said Kaiser asked him to serve the outstanding warrant and see if he could obtain a sample from a drink cup, cigarette or other item, in the process.

The Gaston County officer agreed.

He testified Tuesday that while placing Borders under arrest, Brienza noticed a pack of cigarettes on his nightstand and asked the cuffed man if he would like to smoke before leaving.

Brienza said Borders grabbed the pack, and while standing out in the driveway near the patrol car, took several drags off the cigarette.

Page 2 of 2 - The officer then asked the detained man if he wanted Brienza to dispose of the butt.

He said Borders said “yes” and Brienza pretended to extinguish the cigarette on the ground but actually used his thumb to put out the embers and then placed it in a plastic bag.

That cigarette was turned over to Shelby Police before going to the SBI lab for analysis, according to court testimony.

Kaiser said the DNA profile developed from the cigarette matched DNA found in Tessneer's underwear.

Disagreement on evidence, obtainment

Borders was arrested in December of 2009 and charged with the rape and murder of Tessneer.

Kaiser said he applied for a search warrant Jan. 7, 2010, and executed a full DNA suspect kit.

The results again were a match, according to court testimony.

"There is a zone of privacy here that has been penetrated by police," Teddy said. "Clearly they are trying to push the envelope."

Teddy said officers should have cleared the idea with lawyers or a judicial official and they violated Borders's fourth amendment right.

"We are the only people who stand between overzealous police and anarchy," Teddy told the judge.

He said officers could have watched Borders in a public place, such as McDonald's, and seized a drink cup and served the same purpose.

Teddy said the entire process and evidence has been tainted.

Assistant District Attorney Sally Kirby-Turner said under North Carolina law, the cigarette was effectively abandoned.

She said Borders did not have to allow the officer to dispose of the cigarette, but once he did, by law, it constitutes abandonment.

Once a piece of property is abandoned, Kirby-Turner argued that the conveyor relinquishes all expectations of privacy.

Both Teddy and Kirby-Turner cited case law to back up their arguments.

Boner said he will read over various cases and make a ruling in the upcoming days.

Kirby-Turner said if the judge suppresses the evidence, the District Attorney’s Office will appeal the decision.

Reach reporter Rebecca Clark at 704-669-3344 or rclark@shelbystar.com or follow on Twitter @TheStarRebecca.